John Arthur Charles Gould
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK |
| Judgment Date | 18 January 1968 |
| Judgment citation (vLex) | [1968] EWCA Crim J0118-1 |
| Docket Number | No. 2608/67 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 January 1968 |
[1968] EWCA Crim J0118-1
Lord Justice Diplock
Mr. Justice Widgery
and
Mr. Justice Blain
No. 2608/67
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. M. WALKER appeared on behalf of the Appellant during Argument, and MR. H. GROVES appeared during Judgment only.
MR. E. CROWTHER appeared on behalf of the Crown.
On the 22nd March 1967 the appellant was arraigned at Inner London Sessions on a charge of bigamy, and in the absence of his counsel, who was late in arriving at the Court, he pleaded guilty to that offence. His counsel when he arrived sought leave of the Deputy Chairman to withdraw that plea, because he wished to advance the defence that at the time of his second marriage he held honestly and reasonably the mistaken belief that a Decree Absolute dissolving his previous marriage had been granted. The learned Deputy Chairman, taking the view that even if that were established it would not amount to a defence, refused to allow the plea of guilty to be withdrawn and, accordingly, the appellant was convicted and sentenced to a conditional discharge.
The question of law in this appeal is whether on a charge of bigamy under Section 57 of the Offences Against the Person Act, 1861, a defendant's honest belief upon reasonable grounds that at the time of his second marriage his former marriage had beer dissolved is a good defence to the charge. In R. v. Wheat (1921 2 King's Bench 119) the Court of Criminal Appeal decided that it was not. The learned Deputy Chairman rightly regarded himself as bound by that decision. But we are not.
In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this Court or its predecessor the Court of Criminal Appeal we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v. Bristol Aeroplane Company Limited (1944 King's Bench 718) as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case ( R. v. Taylor 1950 2 King's Bench 368). A fortiori we are bound to give effect to the law as we think it is if the previous decision to the contrary effect is one of which the ratio decidendi conflicts with that of other decisions of this Court or its predecessors of co-ordinate jurisdiction.
The offence of "bigamy is a statutory offence. Our task is therefore to construe the relevant section of the statute which is in the following terms:- "Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour; and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place: Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England or Ireland by any other than a subject of her majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction." The enacting words, which are absolute in their terms, set out the three elements in the offence: (a) A married person; (b) going through the form or ceremony of marriage with another person; (c) during the life of his or her spouse.
The circumstances referred to in the first two parts of the proviso relate to element (b) and element (c) respectively and are true exceptions, that is to say, but for the proviso they would fall within the enacting words which precede it, but the second two parts which refer to cases where the former marriage has been dissolved or declared void at the time of the second marriage are not exceptions. They subtract nothing from and add nothing to the enacting words, for a person whose former marriage has been dissolved or avoided is no longer a married person and element (a) in the offence is absent. As a matter of legislative history they are survivals from somewhat similar provisions in the original Act of James I (1 James I Chapter 11) which first made bigamy a felony. What is now the third part of the proviso applied then to divorce a mensa et thoro and was a true exception, for that kind of divorce pronounced by the Ecclesiastical Court did not dissolve a marriage; but what is now the fourth even at that date was not an exception from the enacting words for a person whose former marriage had been declared absolutely void by the Ecclesiastical Courts was no longer married. But in 1603, when the jurisdiction of the Ecclesiastical Courts was still in the realm of political controversy and statutory draftsmanship in its infancy, it may well have been prudent to state expressly what the consequences of decrees of the Ecclesiastical Courts should be as respects the newly created felony. In 1861, which was four years after the transfer to the Court for Matrimonial Causes of the former matrimonial jurisdiction of the Ecclesiastical Courts and the grant to that Court of what was then a novel jurisdiction to grant divorce a vinculo, the draftsman of the Offences against the Person Act may have thought it prudent to include in the proviso provisions corresponding to those in the Act of James I and its successor, 9 George IV Chapter 31 Section 22, lest their omission might give rise to the suggestion that the words "being married" in the enacting part of the Section were intended to cover cases where the former marriage had been dissolved or declared void by a decree of the Court for Matrimonial Causes. At any rate, we cannot find any other plausible reason for the inclusion of these two provisions in the proviso.
The present case, however, does not fall within the proviso. The appellant's former marriage had not been dissolved or declared void at the time of the ceremony of his second marriage. The only relevance of the proviso is the light (if any) which it throws upon the proceeding enacting words. They are, as we have already pointed out, absolute in their terms. If they are to be construed literally, a mistaken but honest and reasonable belief by the defendant in a fact which would make his act of going through the second form or ceremony of marriage lawful and innocent, would be no defence.
The question, therefore, is: Are they to be construed literally or as subject to the presumption which is usually applied to statutes creating new criminal offences that a crime is not committed if the mind of the preson doing the act in question is innocent?
This question came before a Court of 14 Judges of the Queen's Bench Division as a Crown Case Reserved in 1889 ( R. v. Tolson 23 Queen's Bench Division 168). By a majority of nine to five they held that the presumption did apply, that the offence created by the enacting words was not an absolute offence, but mens rea was an essential ingredient. In R. v. Tolson the fact which the defendant believed,...
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